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04 JUL 12 A G E N D A BOARD OF ADJUSTMENT JULY 12, 2004 - 6:30 P.M. CITY HALL CONFERENCE ROOM 1. CALL TO ORDER: 2. APPROVAL AND/OR CORRECTION OF MINUTES: Regular Scheduled Meeting June 14, 2004 1-6 3. VARIANCE REQUEST(S): a. Front Yard Setback Variance 104 North James Petitioner: Ben Rice 7-8 b. Front Yard Setback Variance 1011 Redmond Road Petitioner: S & J Construction 9-10 ADJOURNMENT MINUTES: BOARD OF ADJUSTMENT REGULAR MEETING DATE AND TIME: July 12, 2004 6:30 p.m. – 7:08 p.m. ATTENDANCE: Commissioners: Commissioners Martha Boyd, Kevin McCleary and William Montgomery, Chairman Stroud City Engineer Whisker and City Attorney Robert Bamburg _________________________________________________________________ City Clerk Susan Davitt recorded those listed above in attendance and Chairman Stroud declared a quorum. APPROVAL AND/OR CORRECTION OF MINUTES: Commissioner Boyd moved, seconded by Commissioner Montgomery to approve the minutes of the Regularly Scheduled Board of Adjustment meeting of June 14, 2004. MOTION CARRIED. VARIANCE(S): Front Yard Setback Variance at 104 James Street Chairman Stroud opened the public hearing at approximately 6:32 p.m. Mr. Ben Rice related that the property was located at the corner of Main and James Streets. He explained that an existing canopy located on the property had previously housed gas pumps. He related that a couple of banks are interested in using the site for ATM machines. He stated that the plans are to locate the ATM machines under the existing canopy or replace the canopy in the same location. He stated that when the canopy housed gas pumps vehicles drove on either side of the canopy for access. It was noted that the variance would be for a front yard setback in a C-2 zone. Mr. Rice pointed out that the front yard setback for C-2 is 25’, adding that the existing canopy is within the 25’ setback. In response to a question posed by Chairman Stroud, Mr. Rice answered that he would be leasing 35’ of the property for ATM installation. He then noted that there is a bill of assurance on the property, which shows a 30’ setback. It was noted that the Board of Adjustment does not have the authority to affect the bill of assurance. Mr. Rice stated that since the property had previously experienced a similar type of operation, it is his hope that there would be no objection to the proposed use. In response to a comment from Commissioner McCleary, Mr. Rice stated that both adjoining tenants have no objections to locating ATM’s in the parking lot under the canopy. City Engineer Whisker stated that the property was platted with a 30’ build line, adding that he assumes the gas station was there before the platting. Mr. Rice stated that the pumps were installed after the property was platted. City Engineer Whisker surmised that the gas station pumps were placed ahead of the build line without considering the canopy or the pumps as permanent construction. BOARD OF ADJUSTMENT REGULAR MEETING July 12, 2004 continued Discussion ensued regarding the location of the canopy; City Engineer Whisker stated that he assumes that the outer edge of the canopy is on the property line. Further discussion ensued regarding traffic patterns for use of the property when the gas pumps were installed. City Engineer Whisker noted that the City used the property as a fuel man station until 2000. Chairman Stroud noted that the poles underneath the canopy are approximately 11’ from the curb. Mr. Rice stated that the request is to be able to operate within the 25’ setback, adding that he would not want to place a foot requirement to the variance because he is not sure exactly where the engineers designing the layout would place the ATM’s. Chairman Stroud noted that if the ATM’s were placed where the poles are currently located the variance would be at least 14’. Mr. Rice noted that if you measure from the outside of the canopy then the variance could be as much as 25’. City Engineer Whisker noted that the property line is at the street curb line. Mr. Rice restated that his request is for a variance to operate ATM machines within the 25’ setback requirement. City Engineer Whisker related that there is a 5’ sidewalk behind the curb line, and that the poles are roughly 15’ from the back of the curb line. He stated that if the property were allowed to be used for ATM’s he believes it would need to be used from the backside of the canopy and not the side adjacent to James Street. Mr. Rice explained that traffic would enter from Main Street as well as James Street. He then asked City Engineer Whisker if his concern is that 5’ being reserved for sidewalk use. City Engineer Whisker answered that he would like to see the side next to James Street left unused regarding safety for pedestrian sidewalk traffic. He added that he is not sure if the request involves a double-sided ATM installation. Mr. Rice clarified that the proposal is for use of both sides regarding ATM machines. He explained that a vehicle entering the property from Main Street would use the right side of the canopy for accessing the machine from the driver window and vice versus for entering from James Street. Further discussion ensued regarding the close proximity of the sidewalk on James Street. BOARD OF ADJUSTMENT REGULAR MEETING July 12, 2004 continued City Engineer Whisker stated that traffic on the James Street side of the canopy would be right beside the sidewalk. He stated that depending on the direction of the traffic there would be lights shining on the oncoming traffic. Mr. Rice noted that there are lights from oncoming traffic in all driving situations. Chairman Stroud stated the concern that the Board would be contributing to the property being continued in a non-conforming use if approved, noting that the existing canopy is out of compliance. He then noted that the variance would not be a minor exception to the zoning setback ordinance, and that the canopy itself is well over the setback requirement for the property. Mr. Rice related that he is not sure that the banks would be interest in keeping the present canopy. Chairman Stroud stated that if the canopy were removed there should not be a problem moving the ATM machines back to the 30’ setback line in the parking lot area. He added that the machines could be constructed on an island, which would allow two-way traffic. Mr. Rice stated that the current tenants would not want the ATM machines to take up their parking spaces, which is the reason for the variance request. Chairman Stroud reiterated his concern in the Board allowing property to continue in a non-conforming use of the zoning ordinance, noting that a variance of at least 14’ is not a minor exception. In response to a question posed by Commissioner Montgomery, City Engineer Whisker responded that if the existing canopy were used they would not be breaking City Code, but added that if a new canopy were constructed it would require a building line setback variance for construction. Chairman Stroud stated that the current canopy would be considered grandfathered as existing, but that anything placed under the canopy would require a setback variance. It was clarified that construction of a new canopy within the 25’ setback would require another variance along with the one being requested. Commissioner McCleary stated that the property had a previous similar use, which took advantage of traffic moving in both directions. Commissioner Montgomery then added that he would like to see the development moved back regarding its close proximity to the sidewalk. Chairman Stroud noted that any relocation construction within the 25’ setback requirement would necessitate a setback variance. In response to a question posed by Commissioner Montgomery, Mr. Rice BOARD OF ADJUSTMENT REGULAR MEETING July 12, 2004 continued answered that vehicles can drive between the poles and the sidewalk. City Engineer Whisker noted that is not always the case, explaining that a child was struck on the sidewalk along Hwy 161, adding that his primary concern would be the safety factor. Mr. Rice offered that steel post could be set into the concrete, which would prevent traffic from running onto the sidewalk. He added that he did not think it would be a problem if the Board wanted to impose that condition on the variance. City Engineer Whisker stated that if the poles are 11’ from the curb line and there is a 5’ sidewalk behind the curb that would limit the traffic lane to 6’ in width; adding that cars are approximately 8 or 9’ in width. Mr. Rice stated that if the existing canopy would not work, then any variance granted by the Board would have to be subject to a new canopy being placed so that the sidewalk could be used. He stated that he is not sure but both banks may want to use their own canopy. He added that the variance could stipulate that vehicles could not drive on the sidewalk and that the existing canopy could be replaced with a new one. City Engineer Whisker stated that he does not have a problem with a single sided ATM operation. Chairman Stroud closed the public hearing at approximately 6:47 p.m. In response to a question posed by Chairman Stroud, City Engineer Whisker clarified that the property has a 30’ build line on the plat. Commissioner Montgomery moved, seconded by Commissioner Boyd to approve the variance request stipulating that vehicles not drive on the sidewalk regarding safety concerns and that the ATM’s be limited to the business side of the existing canopy poles at 104 James Street. MOTION CARRIED. b. Front Yard Setback Variance at 1011 Redmond Road Chairman Stroud opened the public hearing at approximately 6:53 p.m. Mr. Jerry Smith explained that he is proposing to construct a privacy fence along Highland Drive out to the easement line on South Redmond Road. He explained that he requesting to build the fence 11.5’ behind the curb on Highland Drive. He related that the request comes as a result of the shape of the lot, explaining that he had to construct the fence at the setback line or it would cut off a large portion of the property. He related that the fence would be 8’ and constructed of wood. He noted that the building line is 25’ from the curb. He explained that he is proposing to extend the fence to 11.5 from the curb where the building is located and go from that point to the end of his property. He added that there are no side obstructions. It was noted that the property comes to a v-shaped point to the rear. BOARD OF ADJUSTMENT REGULAR MEETING July 12, 2004 continued In response to a question posed by Commissioner McCleary, Mr. Smith answered that the backside would not connect to an existing fence. City Engineer Whisker noted that the rear of the property is a wooded area. Discussion ensued regarding the location of the building in regard to the setback from South Redmond Road. Mr. Smith noted that the fence on the South Redmond Road side would be on a hill but the property going along Highland Drive is mostly flat. City Engineer Whisker clarified that the fence from the south side of the building along Highland Drive will be on Mr. Smith’s property not City property. It was noted that the proposed location of the fence would not pose a visibility concern for traffic. It was also noted that the privacy fence should not pose a concern for the adjacent remaining lot in the Parkview Subdivision. Mr. Smith noted that he would not be extending the fence past the power line. Discussion ensued regarding the fence distance from the adjacent lot being 25’. Mr. Smith stated that he would be willing to locate the fence back to the 25’ line. Chairman Stroud closed the public hearing at approximately 7:00 p.m. Commissioner Montgomery moved, seconded by Commissioner McCleary to approve the front yard setback variance at 1011 Redmond Road, stipulating that the fence observe the 25’ side yard setback. MOTION CARRIED. City Attorney Bamburg addressed the Board regarding a variance approval granted to Mr. Mark Perry of #6 Foxboro Cove. He explained that the 2 to 1 vote in favor of the variance was questioned as to whether two members could approve a motion. He related that he had declared they could, but has since discovered that it takes a majority of the members of the Board. He asks the Board to allow for a public hearing be publicized for that variance request to be held at the August meeting. He related that notices would be sent to the adjoining property owners and all parties that appeared before the Board at the last hearing. He stated that it would be publicized and posted as prescribed by law. He related that essentially the Board would be starting fresh and readdressing the issue from the start without regard to what had occurred at the June meeting. He went on to say that the Board would have to either approve or deny the motion in whatever fashion they deemed appropriate. He then added that the property owner believes he has a valid Certificate of Occupancy. He stated that in discussing the matter with other city folks, this is believed to be the fairest way to address the issue; not only for the property owner who has ask for the variance but also for the adjoining property owners who may have expressed opinions otherwise. Commissioner Montgomery questioned if the hearing would still be the exact BOARD OF ADJUSTMENT REGULAR MEETING July 12, 2004 continued same variance and the same format of the June hearing. City Attorney Bamburg stated that it would be for the 8” height variance as previously requested. City Engineer Whisker stated that he measured the building and believes it is 22’ X 12’ and that even with the upstairs it is still under 650 square feet, adding that the building is over 5’ away from the outside fence. He related that the building is only 16’ tall from the ridge cap to the ground next to it, adding that it is 8” taller than the primary structure. City Attorney Bamburg stated that Mr. Perry would be notified that use of the building would not prohibited as he has been doing because he believes he has a valid C.O. He will also be notified that the height variance will be addressed at the next regularly scheduled meeting. In response to a question posed by Chairman Stroud, City Attorney Bamburg stated that a motion from the Board would be in order. Commissioner Montgomery moved, seconded by Commissioner McCleary to set a public hearing for the Board of Adjustment August meeting to address the 8” height variance at #6 Foxboro Cove. MOTION CARRIED. ADJOURNMENT: Commissioner Montgomery moved, seconded by Commissioner Boyd to adjourn the meeting at approximately 7:08 p.m. MOTION CARRIED. Respectfully, ___________________________ _____________________________ Susan L. Davitt CHAIRMAN Mark Stroud CITY CLERK - TREASURER